The
domain name at issue is <anastasia-beverlyhills.com>, registered
with NameCheap, Inc.

PANEL

The
undersigned certifies that he has acted independently and impartially and to
the best of his knowledge has no known conflict in serving as Panelist in this
proceeding.

Charles
A. Kuechenmeister.

PROCEDURAL
HISTORY

Complainant
submitted a Complaint to the Forum electronically
on January 11, 2019; the Forum received
payment on January 11, 2019.

On
January 14, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <anastasia-beverlyhills.com>
domain name (the Domain Name) is registered with NameCheap, Inc. and that
Respondent is the current registrant of the name. NameCheap, Inc. has verified
that Respondent is bound by the NameCheap, Inc. registration agreement and has
thereby agreed to resolve domain disputes brought by third parties in accordance
with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On
January 14, 2019, the Forum served
the Complaint and all Annexes, including a Written Notice of the Complaint
setting a deadline of February 4, 2019 by which Respondent could file a
Response to the Complaint, via e-mail to all entities and persons listed on
Respondent’s registration as technical, administrative, and billing contacts,
and to postmaster@anastasia-beverlyhills.com. Also on January 14, 2019, the
Written Notice of the Complaint, notifying Respondent of the e-mail addresses
served and the deadline for a Response, was transmitted to Respondent via post
and fax to all entities and persons listed on Respondent’s registration as
technical, administrative and billing contacts.

Having
received no response from Respondent, the Forum
transmitted to the parties a Notification of Respondent Default.

On
February 5, 2019, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the Forum
appointed Charles A. Kuechenmeister as Panelist.

Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the Forum
has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform
Domain Name Dispute Resolution Policy (the "Rules") "to employ
reasonably available means calculated to achieve actual notice to
Respondent" through submission of Electronic and Written Notices, as
defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision
based on the documents submitted and in accordance with the ICANN Policy, ICANN
Rules, the Forum's Supplemental
Rules and any rules and principles of law that the Panel deems applicable,
without the benefit of any response from Respondent.

RELIEF
SOUGHT

Complainant
requests that the Domain Name be transferred from Respondent to
Complainant.

PARTIES'
CONTENTIONS

A.
Complainant

Complainant
is a global cosmetics distributor founded in 1997 by Anastasia Soare. It has
rights in the ANASTASIA BEVERLY HILLS mark through its trademark registrations
with the United States Patent and Trademark Office (“USPTO”) (including Registration
No. 3,679,514, registered Sept. 8, 2009). Respondent’s Domain Name is confusingly similar to Complainant’s
ANASTASIA BEVERLY HILLS mark as it incorporates that mark in its entirety,
merely omitting the spaces between “Beverly” and “Hills,” and adding a hyphen between
“Anastasia” and “Beverly” and the generic top-level domain (“gTLD”) “.com.”

Respondent has no rights or legitimate interests in the
Domain Name. Complainant has not authorized her to use its ANASTASIA BEVERLY
HILLS mark and she is not commonly known by the Domain Name. Respondent fails
to use the Domain Name in connection with a bona fide offering of goods
or services or a legitimate noncommercial or fair use. Rather, she uses it to
pass off as Complainant and either sell counterfeit versions of Complainant’s
products at deeply discounted prices or fraudulently induce consumers to send
payments for product that will never be shipped.

Respondent registered and uses the Domain Name in bad
faith. Respondent attempts to disrupt Complainant’s competing business and
attract, for commercial gain, users to the web site resolving from the Domain
Name by passing off as Complainant to sell counterfeit goods. Furthermore,
Respondent had actual knowledge of Complainant’s ANASTASIA BEVERLY HILLS mark
prior to registering and using the Domain Name.

B.
Respondent

Respondent
did not submit a Response in this proceeding.

FINDINGS

Paragraph
15(a) of the Rules instructs this Panel to "decide a complaint on the basis
of the statements and documents submitted in accordance with the Policy, these
Rules and any rules and principles of law that it deems applicable."

Paragraph
4(a) of the Policy provides that in order to obtain an order cancelling or
transferring a domain name, Complainant must prove each of the following three
elements:

(1)the domain name registered by
Respondent is identical or confusingly similar to a trademark or service mark
in which Complainant has rights; and

(2)Respondent has no rights or
legitimate interests in respect of the domain name; and

(3)the domain name has been
registered and is being used in bad faith.

In
view of Respondent's failure to submit a response, pursuant to paragraphs 5(f),
14(a) and 15(a) of the Rules the Panel will decide this administrative
proceeding on the basis of Complainant's undisputed representations and draw
such inferences it considers appropriate pursuant to paragraph 14(b) of the
Rules. The Panel is entitled to accept all reasonable allegations and
inferences set forth in the Complaint as true unless the evidence is clearly
contradictory. SeeVertical Solutions Mgmt., Inc. v.
webnet-marketing, inc., FA 95095 (Forum
July 31, 2000) (holding that the respondent’s failure to respond allows
all reasonable inferences of fact in the allegations of the complaint to be
deemed true); see alsoTalk City, Inc. v. Robertson, D2000-0009
(WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to
accept as true all allegations of the Complaint.”).

The
Panel finds as follows with respect to the maters at issue in this proceeding:

Identical
and/or Confusingly Similar

Complainant
registered its ANASTASIA BEVERLY HILLS mark with the USPTO (Reg. No. 3,679,514) on September
8, 2009. See, Complaint Annex 4. Registration of a mark with the USPTO
is sufficient to establish rights in that mark for the purposes of Policy ¶
4(a)(i). Home Depot Product Authority, LLC v. Samy Yosef / Express
Transporting, FA 1738124 (Forum July
28, 2017) (finding that registration with the USPTO was sufficient to establish
the complainant’s rights in the HOME DEPOT mark).

Respondent’s Domain Name is confusingly
similar to Complainant’s ANASTASIA BEVERLY HILLS mark, as it incorporates the
mark in its entirety, merely omitting the
spaces between “Beverly” and “Hills,” and adding a hyphen between “Anastasia”
and “Beverly” and the “.com” gTLD. These changes are not sufficient to
distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶
4(a)(i). ADP, LLC. v. Ella Magal, FA
1773958 (Forum Aug. 2, 2017) (“Respondent’s <workforce-now.com>
domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE
NOW mark and adds a hyphen and the gTLD “.com.” These changes do not
sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW
mark.”).

For
the reasons set forth above, the Panel finds that the Domain Name is identical
or confusingly similar to the ANASTASIA BEVERLY HILLS mark, in which
Complainant has substantial and demonstrated rights.

Rights or Legitimate Interests

If
a complainant makes a prima facie case that the respondent lacks rights
or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden
of production shifts to respondent to come forward with evidence that it has
rights or legitimate interests in it. Neal & Massey Holdings Limited v.
Gregory Ricks, FA 1549327 (Forum
Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant
must first make out a prima facie case showing that Respondent
lacks rights and legitimate interests in respect of an at-issue domain name and
then the burden, in effect, shifts to Respondent to come forward with evidence
of its rights or legitimate interests”). If a respondent fails to come
forward with such evidence, the complainant’s prima facie evidence will
be sufficient to establish that respondent lacks such rights or legitimate
interests. If the respondent does come forward with such evidence, the Panel
must assess the evidence in its entirety. At all times, the burden of proof
remains on the complainant. WIPO Overview of WIPO Panel Views on Selected UDRP
Questions, Third Edition (“WIPO Overview 3.0”) at ¶ 2.1.

Policy
¶ 4(c) lists the following three nonexclusive circumstances, any one of which
if proven can demonstrate a respondent’s rights or legitimate interests in a
domain name for the purposes of Policy ¶ 4(a)(ii):

(i)before any
notice to respondent of the dispute, respondent has used or has made
demonstrable preparations to use the domain name or a name corresponding to the
domain name in connection with a bona fide offering of goods or services; or

(ii)respondent
(as an individual, business or other organization) has been commonly known by
the domain name, even if respondent has acquired no trademark or service mark
rights; or

(iii)respondent
is making a legitimate noncommercial or fair use of the domain name, without
intent for commercial gain to misleadingly divert consumers or to tarnish the
trademark or service mark at issue.

Complainant
asserts that Respondent has no rights or legitimate interests in the Domain
Name because (i) Complainant has not
authorized or licensed her to use its ANASTASIA BEVERLY HILLS mark, (ii) she is
not commonly known by the Domain Name, and (iii) Respondent is not using the
Domain Name in connection with a bona fide offering of goods and
services or as a legitimate noncommercial or other fair use because she is
using it either to sell counterfeit goods or induce consumers to pay for
purchases that will not be fulfilled, and to pass herself off as Complainant.
These allegations are supported by competent evidence.

Complainant
states that it has never licensed or authorized Respondent to use its mark in
any way. Complainant has specific competence to make this statement, and it is
unchallenged by any evidence before the Panel. In the absence of evidence that
a respondent is authorized to use a complainant’s mark in a domain name or that
a respondent is commonly known by the disputed domain name, the respondent may
be presumed to lack rights or legitimate interests in the domain name. B.
v. Eshback, FA 830934 (Forum
Dec. 7, 2006) (finding that the respondent failed to establish rights and
legitimate interests in the <emitmortgage.com> domain name as the
respondent was not authorized to register Domain Name featuring the complainant’s
mark and failed to submit evidence that it is commonly known by the domain
name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent
lacks both rights and legitimate interests in respect of the at-issue domain
name. Respondent is not authorized to use Complainant’s trademark in any
capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from
which the Panel might find that Respondent has rights or interests in respect
of the at-issue domain name.”).

The
WHOIS report for the Domain Name submitted as Complaint Annex 18 lists the
registrant as “Frieda Balm.” This name bears no resemblance to the Domain
Name. UDRP panels have consistently held that evidence of a registrant name
that is materially different from the domain name at issue is competent
evidence that the respondent is not commonly known by the domain name. Guardair
Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not
commonly known by the <guardair.com> domain name according to Policy ¶
4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the
disputed domain name). The Panel is satisfied that Respondent has not been
commonly known by the Domain Name within the meaning of Policy ¶ 4(c)(ii).

Complaint
Annex 19 is a screenshot of one of the pages in the web site resolving from the
Domain Name. It prominently displays the name “Anastasia Beverly Hills”
written in a stylized format mimicking exactly Complainant’s registration of
its stylized mark with the USPTO (Reg. No. 5,021,515) on August 16, 2016. See,
Complaint Annex 5. It also offers beauty products for sale at deeply
discounted prices. For example, a lipstick foundation is listed at $3.99 with
the price of $25.00 stricken out, and a brow definer is listed at $4.99 with
the price of $23.00 stricken out. Complainant submitted additional Annexes
featuring products offered by it on its web site at <anastsiabeverlyhills.com>
and by Respondent, with those advertised on Respondent’s web site being
sold at very substantial discounts below the prices for corresponding product
offered on Complainant’s site, e.g., $2.99 versus $18.00 for Dipbrow
Pomade. See, Complaint Annexes 22 through 29 inclusive. Complainant
argues that the prices advertised on Respondent’s site are so low that they must
necessarily be for counterfeit goods or for goods that will not be shipped, as
they are well below even the wholesale prices at which anyone could acquire
genuine product. Complainant also notes that the packaging for some of
Respondent’s products is slightly different from that for corresponding products
sold by Complainant, arguing that this is further evidence that Respondent’s
products are not genuine.

Further,
Respondent’s web pages display banners reading “Anastasia Beverly Hills
Cosmetics by Anastasia Beverly Hills” at the bottom of the page. As noted
above, they also prominently display the ANASTASIA BEVERLY HILLS stylized mark
that is the subject of Complainant’s USPTO Registration Numbers 5,021,515,
5,021,518, 5,021,519 and 5,021,520. See, Complainant Annexes 5 through 8.
The web site also contains a section entitled “About Anastasia Beverly Hills” which
includes information about Complainant’s founder and its business operations. See,
Complaint Annex 30. The general look and feel of Respondent’s web site is
very similar if not identical to that of Complainant. It clearly conveys the
impression that it is owned and sponsored by Complainant. From this and the
evidence discussed above, it is clear that Respondent registered and is using
the Domain Name to pass herself off as and impersonate Complainant for the
purpose of selling counterfeit goods purporting to be those of Complainant. Using
a confusingly similar domain name to create the impression of a non-existent
association with a complainant in order to sell unauthorized or counterfeit
versions of the complainant’s goods is neither a bona
fide offering of goods or services within
the meaning of Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use
within the meaning of Policy ¶ 4(c)(iii). Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays
Complainant’s products. The Panel finds that this use is not a bona fide offering
of goods or services under Policy ¶¶ 4(c)(i) & (iii).”), iWatts Water Technologies Inc. v. wo ci fa men zhi zao (kun
shan) you xian gong si, FA 1740269 (Forum Aug. 11, 2017) (“Respondent
has used the domain name to resolve to a website that mimics the color scheme
associated with Complainant’s WATTS brand and displays counterfeit versions of
Complainant’s products for purchase in an attempt to pass itself off as
Complainant… [therefore], the Panel finds that Respondent has no rights or
legitimate interests in the disputed domain name.”).

Complainant
has made its prima facie case. On
the evidence presented, and in the absence of any evidence from Respondent, the
Panel finds that Respondent has no rights or legitimate interests in the Domain
Name.

Registration
and Use in Bad Faith

(i)circumstances
indicating that you have registered or you have acquired the domain name
primarily for the purpose of selling, renting, or otherwise transferring the
domain name registration to the complainant which is the owner of the trademark
or service mark or to a competitor of that complainant, for valuable
consideration in excess of your documented out-of-pocket costs directly related
to the domain name; or

(ii)you have
registered the domain name in order to prevent the owner of the trademark or
service mark from reflecting the mark in a corresponding domain name, provided
that you have engaged in a pattern of such conduct; or

(iii)you have
registered the domain name primarily for the purpose of disrupting the business
of a competitor; or

(iv) by using the domain
name, you have intentionally attempted to attract, for commercial gain,
Internet users to your web site or other on-line location, by creating a
likelihood of confusion with the complainant’s mark as to the source,
sponsorship, affiliation or endorsement of your web site or location or of a
product of service on your web site or location.

The
evidence of Respondent’s use of the Domain Name discussed above in connection
with the rights and legitimate interests analysis also supports a finding of
bad faith use and registration, based upon the foregoing grounds articulated in
the Policy and upon additional grounds adopted by UDRP panels over the years.
First, Respondent registered and is using the Domain Name to sell counterfeit
goods, passing herself off as Complainant, and passing her goods off as those
of Complainant. As both parties operate in the cosmetics industry, Respondent
is clearly a competitor of Complainant. There is no question that her
diversion of Internet users seeking Complainant to her own web site disrupts
Complainant’s business. This same conduct also amounts to attracting, for
commercial gain, Internet users to Respondent’s web site by creating a
likelihood of confusion with the Complainant’s mark as to the source,
sponsorship, affiliation or endorsement of its web site. As such, Respondent’s
conduct falls squarely within the circumstances articulated by Policy ¶¶ 4(b)(iii)
and (iv). Ontel Products Corporation v. waweru njoroge, FA1762229 (Forum Dec. 22, 2017) (“Respondent’s primary offering seem to be counterfeits of
Complainant’s toy car products. Respondent’s use of the <magictrackscars.com>
domain name is thus disruptive to Complainant’s
business per Policy ¶ 4(b)(iii)”); see also Affliction,
Inc. v. Chinasupply, FA 1223521 (Forum Oct. 23, 2008) (finding that the
respondent attempts to commercially gain and thus demonstrating bad faith per
Policy ¶ 4(b)(iv) by creating confusion as to the complainant’s connection with
the website by selling counterfeit products.)Xylem Inc. and Xylem IP
Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees
that Respondent’s use of the website to display products similar to Complainant’s,
imputes intent to attract Internet users for commercial gain, and finds bad
faith per Policy ¶ 4(b)(iv).”).

Further,
Complainant has an established presence in the cosmetics industry. This, plus
the close similarity between Complainant’s mark, its web site and its <anastasiabeverlyhills.com>
domain name on the one hand and Respondent’s Domain Name and web site on the
other is convincing evidence that Respondent had actual knowledge of
Complainant’s ANASTASIA BEVERLY HILLS mark when she registered the Domain Name
in February 2017. See, Complaint Annex 18 for date of registration. The
Policy recognizes that mischief can manifest in many
different forms and takes an open-ended approach to bad faith, listing some
examples without attempting to enumerate all its varieties. Worldcom
Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5,
2005). The non-exclusive nature of
Policy ¶ 4(b) allows for consideration of
additional factors in an analysis for bad faith, and actual knowledge of
a complainant’s rights in a mark prior to registering an identical or
confusingly similar domain name has often been held to be evidence of bad faith
registration and use for the purposes of Policy ¶ 4(a)(iii). Univision
Comm'cns Inc. v. Norte, FA 1000079 (Forum
Aug. 16, 2007) (rejecting the respondent's contention that it did not register the
disputed domain name in bad faith since the panel found that the respondent had
knowledge of the complainant's rights in the UNIVISION mark when registering
the disputed domain name).

For
the reasons set forth above, the Panel finds that Respondent registered and is
using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).

DECISION

Complainant
having established all three elements required under the ICANN Policy, the
Panel concludes that relief shall be GRANTED.

Accordingly,
it is Ordered that the <anastasia-beverlyhills.com> Domain Name be
TRANSFERRED from Respondent to Complainant.